He lost, but he still wants the more than three-century-old law tossed out or gutted and rewritten.

“About three-quarters of the Act of Settlement is a sort of tirade against the papists,” said the former City of Toronto councillor.

In O’Donoghue’s view there’s no way to square the Act of Settlement and its obviously discriminatory provisions with Canada’s Charter of Rights and Freedoms. That’s true, said Justice Paul Roleau in 2003. But there’s more to it than that.

“It is clear that Canada’s structure as a constitutional monarchy and the principle of sharing the British monarch are fundamental to our constitutional framework,” Roleau wrote in Tony O’Donoghue v. Her Majesty the Queen in Right of Canada, Her Majesty the Queen in Right of Ontario. “It is axiomatic that the rules of succession for the monarchy must be shared and be in symmetry with those of the United Kingdom and other Commonwealth countries. One cannot accept the monarch but reject the legitimacy or legality of the rules by which this monarch is selected.”

In Roleau’s ruling, O’Donoghue’s error was trying to use one part of the Constitution to invalidate another.

In the end it turned out to be less difficult to let women in than allow a Catholic to rule in the Commonwealth. At the Commonwealth summit in Perth, Australia, Oct. 28 all 16 countries agreed to give royal daughters the same claim on the throne as sons and allow any member of the Royal Family to marry a Catholic. But they decided to maintain the ban on Catholics sitting on the throne.

Successive British governments have said the language of the Act of Settlement is obviously insulting, discriminatory and unacceptable but that changing the law would be immensely complex, triggering changes to other legislation.

But one of England’s leading constitutional law experts, Prof. Robert Blackburn of University College London, says that’s nonsense.

“The annual Finance Acts, dealing with the inter-woven minutiae of mind-boggling taxation details, are arguably much worse,” he wrote in 2006.

The real reason for keeping Catholics off the throne has to do with the special status of the Church of England.

“These two issues — reform of the Act of Settlement and disestablishment of the Church of England — are in truth, two sides of the same coin,” said Blackburn.

The English monarch is also head of the Anglican Church in Great Britain. Canon 844 of the Roman Catholic Code of Canon Law forbids, with few exceptions, a Catholic from accepting the Eucharist at an Anglican Mass. A Catholic head of the Church of England might be a problem.

In 1701, not long after the “Glorious Revolution” of 1688 which overthrew England’s last Catholic king, James II, the English were gripped by fear of Catholics and their nefarious, terrorist plots from the real though inept attempt to blow up the Houses of Parliament back in 1605 to various “invasions” by Jesuits. By 1688 the English Bill of Rights declared, “it is inconsistent with the safety and welfare of this Protestant kingdom to be governed by a popish prince or by any King or Queen marrying a papist.” The 1701 act setting out rules of succession continues in the same vein “to obviate all doubts and contentions in the same by reason of any pretended titles to the crown and to maintain a certainty in the succession.”

None of this English history impresses O’Donoghue. A modern nation ought to be able to insist on its own Charter of Rights and Freedoms, he argues.

“I sort of embarrassed a whole lot of people by bringing it up. They don’t want to talk about things that are a little bit unsavoury. They want to brush it all under the rug.”